Department of Justice and Attorney-General Offender Debt Recovery Scheme v Richardson [2015] QCATA 8

CITATION: Department of Justice and Attorney-General Offender Debt Recovery Scheme v Richardson [2015] QCATA 8 PARTIES: Department of Justice and Attorney-General Offender Debt Recovery Scheme (Appellant/Applicant) v David Allen Richardson (Respondent) APPLICATION NUMBER: APL402-14 MATTER TYPE: Appeals HEARING DATE: 18 December 2014 HEARD AT: Brisbane DECISION OF: Justice Thomas, President Member Collins DELIVERED ON: 9 January 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal allowed. 2. Decision of Senior Member Endicott dated 15 August 2014, ordering that the application for external review proceed to hearing, be set aside. 3. The application for review filed by David Allan Richardson in GAR079-14 is dismissed. CATCHWORDS: APPEALS – VICTIMS OF CRIME – RIGHT OF REVIEW – QUANTUM OF FINANCIAL ASSISTANCE – where offender applied to QCAT for a review of the quantum of financial assistance paid to victim – where tribunal found that offender had a right of external review to QCAT on issue of quantum – where applicant appeals against offender’s right – whether the offender had a right of external review under the Victims of Crime Assistance Act 2009 Victims of Crime Assistance Act 2009 (Qld), s 115, s 124, s 125 and Schedule 3 -- 1 of 5 -- 2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr M Hickey of counsel, instructed by Crown Law RESPONDENT: No appearance for the respondent REASONS FOR DECISION Background [1] On 2 February 2011, David Richardson assaulted Brian Volk. On 13 May 2011, Mr Richardson pleaded guilty to the charge of assault occasioning bodily harm. [2] It is not in dispute that Mr Richardson was convicted of a ‘relevant offence’ for purposes of the Victims of Crime Assistance Act 2009 (VOCAA).1 [3] Financial assistance in the sum of $21,179.70 was subsequently granted and paid to Mr Volk pursuant to VOCAA.2 [4] On 26 November 2012, the scheme manager on behalf of the Offender Debt Recovery Unit of the Department of Justice and Attorney General (‘the Department’) issued Mr Richardson with a notice of intended recovery in the sum of $21,179.70.3 [5] Mr Richardson took issue with the quantum of the financial assistance paid to Mr Volk and sought a review of that amount. [6] An internal review was subsequently undertaken by the Manager of the Debt Recovery Scheme.4 The internal review confirmed the original decision to recover $21,179.70 from Mr Richardson. [7] Dissatisfied with the outcome of the internal review, Mr Richardson applied to the Queensland Civil and Administrative Tribunal (QCAT) for an external review. He claimed he was entitled to do so pursuant to section 125 of the VOCAA. [8] The Department opposed Mr Richardson’s application on the basis that section 125 VOCAA did not create an entitlement to an external review to a person who is the perpetrator of the offence (the ‘offender’). 1 VOCAA Schedule 3. 2 VOCAA Chapter 3, part 13. 3 VOCAA s 115. 4 VOCAA s 124. -- 2 of 5 -- 3 The Department submitted that section 125 confined the right of review to QCAT to a person who had applied for assistance under the VOCAA.5 [9] This preliminary matter was heard before the Tribunal on 20 June 2014. A decision was subsequently delivered on 15 August 2014 by Senior Member Endicott, who ordered that Mr Richardson’s application for an external review proceed to a hearing before QCAT. [10] The Department has filed an application appealing that decision. The grounds of appeal contend that the finding of the Tribunal was erroneous and that the decision was wrong at law.6 [11] As the appeal relates solely to the construction of the statute, the appeal is on a question of law.7 Leave to appeal is not required. The Tribunal’s decision [12] The Senior Member found that: a) It cannot be a logical outcome that the legislature intended to confine those who could seek external review through QCAT to victims, whilst other persons aggrieved by a decision, such as an offender, were limited to a right of internal review under section 124. b) If there is a right of internal review as a consequence of being aggrieved by a decision, then logically that person would also have a right to external review. c) The wording of section 125 does not, on its face, exclude such a category of persons.8 Grounds of appeal [13] The Department submits that the Tribunal’s decision is incorrect because: a) The plain and unambiguous language of VOCAA restricts the right of external review to ‘applicants’.9 b) Upon a proper construction, the use of the term ‘applicant’ ‘is ‘grammatically capable of only one meaning and neither the context, the purpose of the provision nor the general purpose of the Act throws any real doubt upon it’.10 c) The combined effect of sections 116(7) and 125 VOCAA is that an offender can seek an external review in respect of liability only. Only a victim can seek an external review on the question of quantum. 11 5 As defined in Schedule 3, VOCAA. 6 Applicant’s submissions paragraph 3. 7 Applicant’s submissions paragraph 69. 8 Decision of Senior Member Endicott dated 15 August 2014 paragraph 21. 9 Applicant’s submissions paragraph 60. 10 Applicant’s submissions paragraph 63. 11 Applicant’s submissions paragraph 67. -- 3 of 5 -- 4 Respondent’s position [14] The respondent advised the tribunal, prior to the hearing, that he did not intend to file any submissions in this appeal and was prepared to abide the decision of the tribunal.12 Discussion [15] One of the objects of the statutory scheme implemented by VOCAA is to help victims of crime recover by providing them with grants of financial assistance.13 Grants of financial assistance pursuant to VOCAA are not intended to reflect the level of compensation that a victim may otherwise be entitled to at common law or otherwise.14 [16] VOCAA designates a method for calculation of financial assistance and seeks to respond promptly and fairly to the needs of victims.15 [17] The legislative scheme also provides for the review of decisions of the Department. [18] Chapter 3, Part 18 of VOCAA deals with the internal and external review of relevant decisions under the Act.16 [19] Section 124 deals with the rights of internal review and expressly extends these rights to a ‘person aggrieved’ by a decision which comes within schedule 1. It relevantly provides: 124 Internal review of decision (1) A person aggrieved by a decision identified in schedule 1 may apply to the scheme manager for a review of the decision. [20] Section 125 provides for a right of external review to QCAT after an internal review has been undertaken. It relevantly provides: 125 External review of reviewed decision (1) This section applies if a decision is confirmed, amended or substituted on review under section 124 (the internal review decision). (2) The applicant may apply, as provided under the QCAT Act, to QCAT for a review of the internal review decision. [21] The definition of ‘applicant’ is defined in Schedule 3 as follows: Applicant, for chapter 3, means a person who has applied for financial assistance under the scheme. [22] Schedule 3 does not contain a definition for a ‘person aggrieved’. 12 Letter Gun Lawyers to QCAT, Brisbane Registry dated 19 November 2014. 13 VOCAA s 3(2)(a). 14 VOCAA s 3(3). 15 Decision of Senior Member Endicott dated 15 August 2014 paragraph 10. 16 Applicant’s submissions paragraph 48. -- 4 of 5 -- 5 [23] Clearly, Section 124 is broad in its operation. Those who are entitled to seek review include anyone who is aggrieved which includes both victims and the offender. [24] In contrast, section 125 confines the entitlement to an external review to an ‘applicant’, being a person who has applied for financial assistance under the scheme. There is no reference to a ‘person aggrieved’ being granted such a right. [25] The High Court has long designated that courts and tribunals are to give the words of a statutory provision the meaning that the legislature intended them to have.17 The wording of section 125 is in clear and unambiguous terms. [26] It has been suggested that the inability to seek external review is unjust or illogical given the entitlement to an internal review. The method of operation of the review process is, of course, a matter of policy determined by the legislature. If the legislature had intended a right of external review to be conferred on a ‘person aggrieved’ (as used in section 124 VOCCA), it could have expressly provided for this right. The text of the legislative provision is grammatically capable of only one meaning and a court or a tribunal is not entitled to depart from that meaning simply because the clear meaning is asserted to produce anomalies or injustice.18 [27] Upon a proper construction, the respondent has no right of external review to QCAT pursuant to section 125 in relation to the issue of the quantum of the grant of assistance paid to Mr Volk. Conclusion [28] The appeal is allowed. [29] The decision of the Tribunal of 15 August 2014 is set aside. The respondent’s application in proceedings number GAR079-14 is dismissed. 17 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384. 18 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 421 – 423. -- 5 of 5 --